I taught the basic American government freshman survey course for 17 years, did all the usual topics you find in the textbooks, espoused wisely on the intricacies that I could add from personal experience as a former budget analyst, practicing school board member, campaign consultant. Yes, indeed, everything a student could ever want in learning about their government.
Never talked about prosecutors.
The most powerful people in our government, people who can threaten more President’s futures than anyone else on the planet, people who, if they target you, can do more harm to you and your family than any other government official, pound for pound. Never mentioned them. Which tells you basically everything you need to know about poli sci and US gov’t education in this country, but that’s a different topic for a different blog.
My point here, instead, is to note how important Angela J. Davis’ (not THAT Angela Davis) new book, Arbitrary Justice: The Power of the American Prosecutor is in terms of its coverage of and questions about the power and practice of our DAs and about our general and determined ignorance about them as citizens and potential suspects. I’ve never bought the whole “power corrupts, absolute power yada, yada” thing because I’ve seen too many people whom power ennobled, made better, made society better because they had it. That’s true of many of the prosecutors I’ve been fortunate to work with in my life, including a couple of the recognized best of the 20th century, Andrew Sonner and Michael McCann. You have to know from his posts here that Ben Barlyn is one of those with whom that power can be entrusted. They epitomize what we talk about here as “good” prosecutors.
But we also talk here about the “bad” prosecutors, primarily because of the harm they do not just to us and our free society but also because of how they undermine the work and reputations of the good ones. And the invisibility of most prosecutorial work and the questions that arise in its practice means that it’s not until the bad ones go so over the top that they can’t be ignored, well after their misuse of power could have limited the damage. Any book that pulls back the curtain is to be valued. A book that does that with good writing and thorough analysis like what Davis, a long-time public defender, pulls off here is even more important.
She covers all the basic topics—prosecutorial discretion, charging power and plea bargains, relationship for good or bad with victims, the death penalty choice, US attorneys and the Attorney General as a species all their own, prosecutorial misconduct, ethics, and accountability, and, best, possible reforms. Here are a few quotes to direct your interest:
All of the reasons in support of prosecutorial discretion explain why it is so essential, but they do not address the problems that have resulted from the failure to monitor how that freedom and independence to enforce the law, the judicial and legislative branches of government have failed to perform the kind of checks and balances essential to fair and effective democracy. . . .
Consequently, prosecutors, unlike judges, parole boards, and even other entities within the executive branch such as police, presidents, and governors, have escaped the kind of scrutiny and accountability that we demand of public officials in a democratic society. Prosecutors have been left to regulate themselves and, not surprisingly, such self-regulation has been either nonexistent or woefully inadequate. . . .
Much of what passes for legal behavior might in fact be illegal, but because prosecutorial practices are so rarely challenged, it is difficult to define the universe of prosecutorial misconduct. Because it is so difficult to discover, much prosecutorial misconduct goes unchallenged, suggesting that the problem is much more widespread than the many reported cases of prosecutorial misconduct would indicate. As one editorial described the problem, “[i]t would be like trying to count drivers who speed; the problem is larger than the number of tickets would indicate.” . . .
Prosecutors are rarely punished for misconduct, even when the misconduct causes tremendous harm to its victims. Of the eleven thousand cases of alleged prosecutorial misconduct examined by the Center for Public Integrity, the appellate courts reversed convictions, dismissed charges, or reduced sentences in just over two thousand. However, in these cases, most of the prosecutors suffered no consequences and were not held accountable or even reprimanded for their behavior. . . .
It is difficult to strike the appropriate balance between independence and accountability in the prosecution function. Independence is extremely important to the appropriate exercise of prosecutorial discretion and power. Thus, prosecutors should perform their duties and responsibilities independently, on the basis of all of the appropriate considerations that promote the effective and efficient enforcement of defendants in particular cases. On the other hand, prosecutors should be accountable to the constituents they serve without allowing the prospect of reelection to improperly influence their decisions in individual cases. Prosecutors should be accountable to their constituents as they formulate policies on general issues such as charging, plea bargaining, and sentencing. However, ultimately they must make decisions in individual cases independently, taking into account all of the relevant considerations and ignoring inappropriate factors such as class, race, ethnicity, or politics, with the goal of achieving a fair and just result in all cases. All prosecutors face the difficult challenge of effectively implementing these conflicting goals. . . .
Davis finishes her overview and analysis with recommendations for improving prosecutorial transparency and accountability, such as greater oversight by the legal profession itself, strengthening disciplinary processes, shoring up the current and basically ignorant (my words, not hers) electoral and appointments processes, and use of public information campaigns, prosecution review boards, and racial disparity studies. She particularly praises the Vera Institute of Justice’s Prosecution and Racial Justice Project for its work with prosecutors seeking to reduce racial disparity, without noting that the list of those DAs involved is almost a Hall of Fame of “good” prosecutors, not “bad” ones, who somehow are missing. She makes the strange assertion that prosecutorial support is necessary for the review boards or the studies when, in fact, enough data exist in a range of other sources to shine enough light on practice to force the prosecutors to open up their own data to fight the charges.
It’s true that DA data are the black hole of criminal justice, deliberately so so that the problems outlined here are so hard to address. Judge Sonner told me more than once how he had supported an original move to develop an “evidence-based” approach to study prosecution and its decisions, although it probably wasn’t being called that in those days, but the effort got shanghaied by hard-liners. As I said, however, our data from courts, corrections, victims, law enforcement, and other state/local agencies are good enough to paint a general portrait that only a truly obstinate prosecutor would ignore once public debate were started. The data track would be the best way to start shining the much needed light described by this study. I would also support moving toward a voucher system for counties to make limited claims on state resources and correctional facilities, which would force more local attention to how prosecutors are deciding to use the capped funds. Finally, here’s an idea only a public defender would love—hire as many PDs as ADAs and switch them out every three years, making each side have to deal with the realities of the others. Of course, in a world in which defendants can already be a little suspicious of who their PD works for, they might not be thrilled with having a former ADA recommending that they take that plea bargain.
Is Davis’ the best that can be done to stir investigation and discussion of the most powerful public officials in America? It’s a short book, easily digested, so those requiring the usual legal tome will likely say "no" or point to omissions as crippling. She only spends one chapter discussing the abuse of prosecutorial power and misconduct, any case of which can be and has been a book in itself (just ask John Grisham). But it’s a fair, objective account from someone whose own profession could have been expected to go a different way. Whatever. The point is moot. It’s the book out there right now and it gets the job done well. Let’s hope anyone wanting her to do more will be out with their better book quickly.